Menace St. Hilaire - Page 6

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          a joint return in order to be entitled to the credit.  “An                  
          individual legally separated from his spouse under a decree of              
          divorce or of separate maintenance shall not be considered as               
          married.”  Sec. 21(e)(3).  Putting aside the fact that petitioner           
          did not substantiate any child care expenses, for the reasons               
          stated below, we hold that petitioner was married during the                
          taxable year 2000, did not file a joint return with his wife,               
          and, accordingly, is not entitled to claim a child care credit.             
               Section 32(a) generally provides eligible individuals with             
          an EIC against their income tax liability.  An “eligible                    
          individual” is defined as any individual who has a “qualifying              
          child”.  Sec. 32(c)(1)(A)(i).  A qualifying child includes a son            
          of the taxpayer, sec. 32(c)(3)(B)(i)(I), who has the “same                  
          principal place of abode as the taxpayer for more than one-half             
          of such taxable year”, sec. 32(c)(3)(A)(ii).  Respondent concedes           
          that petitioner satisfies these requirements.  Section 32(d)                
          provides, however, that:  “In the case of an individual who is              
          married (within the meaning of section 7703), this section shall            
          apply only if a joint return is filed for the taxable year under            
          section 6013.”  Again, as discussed below, we find that                     
          petitioner was married during the taxable year 2000, and, since             
          he and his wife did not file a joint return, petitioner is not              
          entitled to claim an EIC.                                                   

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